Amicus Curiae Brief — London v. Patterson

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—_ guPREMeE BAK, JR. CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No 73-489

CLARK COUNTY, a political subdivision

of the State of Nevada, :

Petitioner, }

MARGARET TURNER, as Legal Guardian of F

LIONEL EUGENE HOLLINS, YOLANDA K.

HOLLINS and MARVAR ADAMS, |

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

THE STATE OF NEVADA

BRIEF OF CITY OF LAS VEGAS AS AMICUS CURIAE

CARL E. LOVELL, JR.

City Attorney

CITY OF LAS VEGAS, NEVA-

DA, a Municipal Corporation

400 East Stewart Avenue

Las Vegas, Nevada 89101

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SUPREME COURT OF THE UNITED STATES

October Term, 1973

CLARK COUNTY, a political subdivision

of the State of Nevada,

Petitioner,

vs.

MARGARET TURNER, as Legal Guardian of

LIONEL EUGENE HOLLINS, YOLANDA K.

HOLLINS and MARVAR ADAMS,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

THE STATE OF NEVADA

BRIEF OF CITY OF LAS VEGAS AS AMICUS CURIAE

CARL E. LOVELL, JR.

City Attorney

CITY OF LAS VEGAS, NEVA-

DA, a Municipal Corporation

400 East Stewart Avenue

Las Vegas, Nevada 89101

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INDEX

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Reasons tor Granting the Writ ........ 6600s eeeeeees

I. The decision below decided a question

contrary to the applicable decisions of

United States Supreme Court. :

Il. The decision below confucts with the F

decisions of the Highest Courts of other ‘

states as to the proper application of :

the equal protection clause of the Four- f

teenth Amendment of the U.S. Consti-

tution in relation to statutes which

conditionally waive government

immunity.

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CITATIONS

Cases

Artukovich v. Astendorf, 21 Cal.2d 329 (1942)

131 P.2d 831, revgonreh 125 P.2d 16 .............

Barrick Realty, Inc. v. City of Gary, Ind.,

PR ee Teer ere ree

Boyne v. State ex rel Dickerson, 80 Nev 160,

OR a bs en re 9

Birmingham v. Weston, 233 Ala 563 (1937)

aye TM FOE Pree err er cee reer 7

City of Las Vegas, Nevada v. Ackerman,

SS Nev 493, (1969), 437 P.ZOSZS nw cc ccccescences 9

DeFunis v. Odegaard, 507 P.2d 1169(1973 .......... 14

Grambs v. Birmingham, 202 Ala 490 (1919)

Pre Per eee rly see rer ye ee Teer er 13, 14

Henry’s Restaurants of Pomona, Inc. v. State

Board of Equalization, App. 106 Cal.Rptr. 867 ....... 10

Johnson v. Fresno County, 64 Cal.App.2d 576,

CO. SE Cu ce cies cee eo Ri aee eR eae bea 12

McGowan v. Maryland, 366 U.S. 420, 425-426,

(1961), 81 S.Ct. 1101, 1105, 6 L.Ed.2d. 393,399 ..... 6,7

Nebbia v. People of State of New York, 291 U.S. 502

525 (1934), 54 S.Ct. 505, 511, 78 L.Ed. 940 ......... 15

People v. Finston, 29 Cal.Rptr. 165 (1963) ........... 9

Professional Firefighters, Inc. v. City of Los

Angeles, 32 Cal.Rptr. 830 (1963) 384 P.2d 158 ....... 7

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Page

Robinson v. Memphis, 171 Tenn 471, (1937)

ee se ee ee eee 12

State of Arizona v. Stone, 443 P.2d 933, (1968)... . 10, 11, 13

State of Arizona v. Wadsworth, 109 Ariz 59 (1973),

coco vce ccs ccccnccccccccccess 7,8 5

Stone v. Arizona Highway Commission :

93 Ariz 384 (1963), 381 P.2d 107 ................. 10, 11 4

¢

Subsequent Injuries Fund v. Industrial ¢

Accident Commission, 310 P.2d 7(1957) ........... 8,9 k

Touhey v. Decatur, 175 Ind 98 (1911) ;

93 NE 540, 32 LRA NS 350, 3 NCCA 390 ........... 12, 13 ;

United States v. Toledo, Peoria & Western

Railroad Co., 280 F.Supp. 243 (N.D.Ind. 1968) ....... 15

Victor Chemical Works v. Silver Bow Co.,

ae ket euvesecces 9

Whitfield v. Roth, App. 107 Cal.Rptr. 207 (1973) ..... 14,15

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QUESTIONS PRESENTED

1. Whether it is a proper application of the Equal Pro-

tection Clause of the Fourteenth Amendment of the United

States Constitution to prohibit legislation by which the State

treats victims of torts committed by governmental entities

differently than victims of torts committed by private persons.

2. Whether the Equal Protection Clause of the Four-

teenth Amendment of the United States Constitution prohibits

the various states from protecting the governmental tort tort-

feasor by requiring that the tort claimant gives special notice

as a condition precedent to suit.

EIA I Oh ART OY ELI OIL TEA METRES Se TNL AON NAPSTER 10 iis

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No.

CLARK COUNTY, a political subdivision

of the State of Nevada,

Petitioner,

vs.

MARGARET TURNER, as Legal Guardian of

LIONEL EUGENE HOLLINS, YOLANDA K.

HOLLINS and MARVAR ADAMS,

Respondent.

TAPAS

ON WRIT OF CERTIORARI TO THE SUPREME

COURT OF THE STATE OF NEVADA

BRIEF OF CITY OF LAS VEGAS AS AMICUS CURIAE

PFT ET LT Pres Doe Pe

FA SPILT

¢

By leave of this Court, the CITY OF LAS VEGAS,

NEVADA, a Municipal Corporation, files this brief as amicus

curiae.

JURISDICTION

The opinion of the Supreme Court of the State of Nevada

was rendered on June 6, 1973. A timely petition for rehearing

was denied on June 25, 1973, and the petition for certiorari was

filed by CLARK COUNTY within ninety days of that date. The

Court’s jurisdiction is invoked under 28 U.S.C. Section 1257(3).

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INTEREST OF THE AMICUS CURIAE

The amicus curiae, CITY OF LAS VEGAS, NEVADA, has

an interest in this case in that it is subject to the provisions of

NRS 268.020, which is the statute applicable to claims against

the City of Las Vegas, Nevada, and is comparable to NRS 244.

245 and 244.250 and the decision of the Nevada Supreme Court

raises an issue of great importance. If left undisturbed, the

ramifications of the decision will repeatedly present themselves

to the Courts of the State of Nevada. Further, the decision of

the Nevada Supreme Court is in direct conflict with recent

decisions of the Supreme Courts of other states and with the

decisions of this Honorable Court.

The CITY OF LAS VEGAS will not take up the “merits”,

except to adopt the views expressed by Petitioner, CLARK

COUNTY.

REASONS FOR GRANTING THE WRIT

I

The decision below decided a question

contrary to the applicable decisions of

United States Supreme Court.

The decision of the Nevada Supreme Court stands squarely

in conflict with that of this Court as expressed in the case of

McGowan v. Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101,

1105, 6 L.Ed.2d 393, 399 (1961), wherein this Court, on page

1105, stated that:

“The standards under which this proposition is to be

evaluated have been set forth many times by this Court.

Although no precise formula has been developed, the

‘See appendix attached hereto.

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Court has held that the Fourteenth Amerdment permits

the States a wide scope of discretion in enacting laws

which affect some groups of citizens differently than

others. The constitutional safeguard is offended only if

, . State legislatures are

presumed to have acted within their constitutional power

despite the fact that, in practice, their laws result in some

inequality. A statutory discrimination will not be set aside

if any state of facts reasonably may be conceived to justify

it. See Kotch v. Board of River Port Pilot Com’rs, 330 U.S.

552, 67 S.Ct. 910, 91 L.Ed. 1093; Metropolitan Casualty

Ins. Co. of New York v. Brownell, 294 U.S. 580, 55 S.Ct.

538, 79 L.Ed. 1070; Lindsley v. Natural Carbonic Gas Co.,

220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369; Atchison, T. &

S.F.R.Co. v. Matthews, 174 U.S. 96, 19 S.Ct. 609, 43 L.Ed.

909.” (Emphasis added.)

To allow a Court decision to stand which is an abrogation

of the legislative intent allows said Court under the guise of

judicial interpretation to avoid the plain, certain and mandatory

provisions of a statute. Birmingham v. Weston, (1937) 233 Ala

563, 172 So 643, 109 ALR 970; Professional Firefighters, Inc.

v. City of Los Angeles, 32 Cal.Rptr. 830, 384 P.2d 158.

Although the case of State of Arizona v. Wadsworth, 109

Ariz 59, 505 P.2d 230, involves the classification of drugs, it

is analogous to the problem in this matter inasmuch as it points

out that a classification must be unreasonable in order to be

struck down by the Court and be a denial of equal protection.

The Arizona Supreme Court relied upon this Court for guidance

and stated, on page 233, that the guidelines set by this Court

are as follows:

“The rules by which this contention must be tested,

as is shown by repeated decisions of this Court, are these:

1. The equal protection clause of the 14th Amend-

ment does not take from the State the power to classify in

the adoption of police laws, but admits of the exercise of a

wide scope of discretion in that regard, and avoids what is

SI takai re ve a rial a aR a teh an |

done only when it is without any reasonable basis, and

therefore is purely arbitrary.

2. Aclassification having some reasonable basis

does not offend against that clause merely because it is

not made with mathematical nicety, or because in practice

it results in some inequality.

3. When the classification in such a law is called

into question, if any state of facts reasonably can be con-

ceived that would sustain it, the existence of that state of

facts at the time the law was enacted must be assumed.

4. One who assaults the classification in such a law

must carry the burden of showing that it does not rest

upon any reasonable basis, but is essentially arbitrary.”

Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79,

31 S.Ct. 337, 340, 55 L.Ed. 369, 377 (1911). See also,

Al Means, Inc. v. City of Montgomery, 104 So.2d 816.

In the case of State v. Wadsworth, 505 P.2d 230, the Court

stated:

“This court is not concerned with the wisdom of the

(legislation) nor may we substitute our judgment for that

of the legislature in its choice of method of enforcement

* * * Our inquiry is limited to the question of whether

the Act contravenes the state and federal constitutions.

Wisdom, necessity, propriety or experience of the Act are

matters exclusively within the province of the legislature

* * © If the facts underlying * * *(Act)* * * are

fairly debatable as the number of decisions of appellate

courts attests, the judgment of the legislature prevails.

* * ©" Skaggs Drug Center, Inc. v. United States Time

Corporation, 101 Ariz 392, 397, 398, 420 P.2d 177, 182,

183 (1966). (Additional citations omitted.)

A statute is clothed with the presumption of constitution-

os

OP ORO 2°" EK Sere st

ality and a legislative determination as to what is a sufficient

distinction to warrant a classification will not be overthrown

unless it is palpably arbitrary. Subsequent Injuries Fund v.

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Sadie oe i ee alee ae

Industrial Accident Com’n., 310 P.2d 7; Rasein's Hiaatnn,

29 Cal.Rptr. 165; Victor Chemical Works v. Silver Bow Co.,

301 P.2d 730.

In the Nevada case of Boyne v. State ex rel Dickerson, 80

Nev 160, 390 P.2d 225, the Court stated on page 227:

“In view of the general rule that all presumptions are

in favor of the validity of statutes and that a classification

made by the Legislature will not be overthrown unless it is

palpably unreasonable and arbitrary, I think, that any

inquiry into the constitutionality of a statute should be

approached with considerable trepidation.

The equality guaranteed by the equal protection

clause is equality under the same conditions and among

persons similarly situated. The Legislature may make

reasonable classifications with respect to persons, busi-

nesses, property and other activities but those classifica-

tions must not be arbitrary and must be based upon some

difference in the classes having a substantial relation to the

legitimate object to be accomplished.”

In the more recent Nevada case of City of Las Vegas, .

Nevada v. Ackerman, 85 Nev 493, 457 P.2d 525, the Court

stated on page 530:

‘As it was aptly stated by the trial court: ‘It is not

the function of the Court to question the wisdom of the

public, but to determine whether or not they have lawfully

enacted the measure in issue.’ In Turner v. Fogg, 39 Nev é

406, 159 P. 56 (1916), this Court quoted with approval

the reasoning of the Pennsylvania Supreme Court: ‘If it

were our duty to make the law, no doubt some of its pro-

visions would be written differently, but we cannot declare ;

an act void because in some respects it may not meet the

approval of our judgment, or because there may be differ-

ence of opinion as to its wisdom upon grounds of public

policy. Questions of this character are for the Legislature,

and not for the Courts.’ ”

ea a gy he bt pte aah re ae i ace Raa at Ca bie aa

In the 1973 case of Henry's Restau Pomona, Int

App. 106 Cal.Rptr. 867, it was

Vv.

stated on page 871:

“Neither due process nor equal protection imposes

upon a state any rigid rule of the equality of taxation ....

A legislature is not bound to tax every member of a class

or none. It may make distinctions . . . . having a rational

basis and . . . . they must be presumed to rest upon that

basis if there is any conceivable state of facts which would

support it.” (Carmichael v. Southern Coal, 301 U.S. 495,

at 509, 57 S.Ct. 868, 81 L.Ed. 1245; see also Stevens v.

Watson, 16 Cal.App.3d 629, 94 Cal.Rptr. 190; People v.

Herbert’s of Los Angeles, 3 Cal.App.2d 482, 39 P.2d 829.)

Il

The decision below confucts with the

decisions of the Highest Courts of other

states as to the proper application of

the equal protection clause of the Four-

teenth Amendment of the U.S. Consti-

tution in relation to statutes which

conditionally waive government

immunity.

It must be pointed out that the right of suit against a

governmental entity and the liability of said entity are two

distinct things. In State of Arizona v. Stone, 443 P.2d 933, the

Court of Appeals quoted from Stone v. Arizona Highway

Commission, 93 Ariz 384, 381 P.2d 107 (1963), and stated:

“However, the right to bring suit against the state and

the liability of the state are two distinct things:

‘Immunity from an action is one thing; immunity

from liability is another; hence the state does not

waive its immunity from liability for the negligence

of its agents, servants or employes by a statute con-

-10-

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PLT TINTS EL

ferring jurisdiction only upon the court.’ State v.

Sharp, 21 Ariz 424, 428, 189 P. 631, 632 (1920).

Conversely, the abrogation of governmental immunity

should have no effect, per se, upon the limitations placed

upon the method and manner of bringing suit against the

state. See 49 Am.Jr. States, Territories and Dependencies,

Sec. 99, at 316; and 81 C.J.S. States Sec. 215(c) at 1310.”

(Emphasis added.)

And on page 935, the Court stated:

“In construing statutes, the overriding consideration

always is the determination of the true legislative intent.

Bushnell v. Superior Court, 102 Ariz 309, 428 P.2d 987

(1967). An important consideration in construing a

statute is that the Court give some meaning to all of the

language used in the statute, if this is possible. City of

Mesa v. Killingsworth, 96 Ariz 290, 394 P.2d 410 (1964). .

The majority of jurisdictions direct that, as a condition

precedent, compliance must be had with statutory provisions

requiring a notice of a claim to be filed within a particular

period of time before a cause of action can be filed against a

governmental agency. The fundamental reasons why recovery

for personal injuries against a municipal corporation should be

barred was stated in the California Supreme Court in the case of

Artukovich v. Astendorf (1942) 21 Cal.2d 329, 131 P.2d 831,

revg on reh 125 P.2d 16, wherein the Court, in page 833 stated:

“The underlying principles upon which the authori-

ties are based are (1) that neither the state nor any of its

political subdivisions may be sued in the absence of speci-

fic statutory permission; (2) that where a right of action

against the State or any of its political subdivisions is

created by statute, such right may be circumscribed by any

conditions that the Legislature may see fit to impose; and

(3) that when the Legislature enacts a mandatory provision

requiring in general terms that all claims must be presented

before any action may be brought thereon, compliance

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The Supreme Court of the State of Tennessee in the case

of Robinson v. Memphis (1937) 171 Tenn 471, 105 SW2d 101,

upheld a judgment for the City of Memphis, stating, on page

102:

** .. It may be somewhat of a harsh rule to apply in some

instances, to require a minor of tender years, and who may

be, as alleged in this declaration, of such immature age and

lack of mental capacity as to be unable to know or take

cognizance of this requirement of the law; but the answer

to this is that the statute has made no exception because

of infancy or incapacity. That is a matter for the law-

making body. It is the duty of the Court to enforce the

law as it is made... .”

The right to sue a governmental subsidiary is principally

on the ground that the right is created by statute and, therefore,

the Legislature has the right to prescribe the conditions under

which it may be exercised.

In the case of Johnson v. Fresno County (1944) 64 Cal.

App.2d 576, 149 P.2d 38, it was contended by the Plaintiff

that the statute involved which required ninety days in which to .

file a claim was arbitrary, capricious and unreasonable and de- :

prived the Plaintiff of his right to remedy without due process

of law. This was rejected by the Court since the right of action

was created by statute, and since the statute placed a limitation

of time in which the right was to be exercised, the right must be

asserted within the time limited or it ceases to exist and could

not be thereafter enforced.

It was held in Touhey v, Decatur (1911) 175 Ind 98, 93

NE 540, 32 LRA NS 350, 3 NCCA 390, that no violation of the

Fourteenth Amendment or of the state constitution was involved j

in the holding that a claim against a municipality was barred 4

because of failure to give notice within the sixty-day period :

- §2-

PERT NE SITLL LITT ELIE L A GO EEL EG BERG ee OS gs

required by statute, even though the Plaintiff during the period

in which the notice should have been given was physically and

mentally unable to do so because of injuries received, the Court

pointing out that, since the claim was a statutory one, the Legis-

lature had the right to provide the conditions upon which an

action could be maintained, without being open to constitu-

tional objections.

Even in cases wherein infancy is involved, the majority of

jurisdictions have ruled that lack of timely notice barred recov-

ery for minors for injuries since, in the absence of legislative

authorization, the notice requirement permits no exception.

The statutes NRS 244.245, 244.255 and 268.020 were

passed by the Legislature of the State of Nevada to enable the

state or political subdivision thereof to have reasonable notifi-

cation of any and all claims that might possibly be filed against

the particular entity. Prior to the enactment of these sections

and the enactment of NRS 41.032 and 41.039, there was no

right of action against a political entity, but having given up its

governmental immunity, the state has set up a means whereby a

claimant having a cause of action against the state or political

subdivision thereof must, as a condition precedent, file a claim

against the involved political subdivision. Again, in State v.

Stone, supra, on page 935, the Court states:

*‘Among the recognized purposes of a claims statute such

as this is to permit the state to investigate the circum-

stances of claims against it, see C.J.S. States, Sec. 207(2),

at 1276; and Olender v. State, 194 Misc. 583, 87 N.Y.S2d

578 (1949), and‘ * * * to establish an orderly procedure

by which the legislature will be advised of claims in instan-

ces where no provision has been made for payment.’ 45

Cal.Jur. 2d State of California Sec. 163, at 517-518. Pur-

poses such as this are as well served by the investigation

and planning for tort claims as in the case of those arising

in contract or by statute.”

Also the Alabama Supreme Court, in Grambs v. Birmingham

(1919) 202 Ala 490, 80 So 874, stated on page 876:

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« ... When the claimant must needs resort to the Courts,

he can only prevail against a diligent defense by alleging

and proving that he has filed a statement according to the

substantial requirements of the statute . .. . Some of the

Courts have assumed to ingraft upon similar statutes pro-

visos which permit waivers, but the weight of authority

sustains our statement as to the law of the case .. . Most

of the cases to the contrary are from Michigan, and we

may note in connection with them that the statute of that

state seems far from being as clear as ours in prescribing

the filing of a statement or the serving of notice ..., asa

condition precedent to the bringing of suit . . .” (Emphasis

added.)

Whenever a state or political subdivision thereof has a

rational basis for classification, the question of the Fourteenth

Amendment is not involved. To this effect, the case of DeFunis

v. Odegaard, (Wash.) 507 P.2d 1169, states on page 1181:

“Generally, when reviewing a state-created classifi-

cation alleged to be in violation of the equal protection

clause of the Fourteenth Amendment, the question is

whether the classification is reasonably related to a legiti-

mate public purpose. And, in applying this “rational

basis’’ test, (A) discrimination will not be set aside if any

state of facts reasonably may be conceived to justify it.”

McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101,

1105, 6 L.Ed. 393 (1961). See also, Securities Corp. v.

Smith, 153 N.E.2d 806; Collins v. State Bd. of Social

Welfare, 81 N.W.2d 4.

IE LT PON >

Although the case of Whitfield v. Roth, App. 107 Cal.

Rptr. 207, involved a medical malpractice action, the Court

states on page 210:

PI ORS Ee Ee

“In order to assert an action against a public entity a

Plaintiff must plead and prove compliance with the appli-

cable claims statute (Solis v. County of Contra Costa

(1967) 251 Cal.App.2d 844, 846, 60 Cal.Rptr. 99). Failure

to do so is “fatal to the cause of action” (Tietz v. Los

Angeles Unified Sch. Dist. (1965) 238 Cal.App.2d 905,

SSR er et pee}

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911, 48 Cal.Rptr. 245, 249). It has consistently been held

that these claims requirements are applicable to minors,

and that the time to file a claim is not tolled by reason of

minority (Wozniak v. Peninsula Hospital (1969) 1 Cal.App.

3d 716, 723, 82 Cal.Rptr. 84; Van Alstyne, California Tort

Liability Supplement (Cont.Ed.Bar, 1969), Sec. 8.6, pp.

91-92). And when the claimant is a minor, it is the parents’

knowledge or lack of knowledge that is controlling in

determining compliance with the claims requirement

(Wozniak v. Peninsula Hospital, supra, at p. 723, 82 Cal.

Rptr. 94).”

The only demand upon the law as it applies to due process

or equal protection of the law is that said law shall not be unrea-

sonable, arbitrary or capricious and that the means selected shall

have a real and substantial relationship to the object sought to

be obtained. See, Barrick Realty, Inc. v. City of Gary, Ind.,

354 F.Supp. 126 (1973); Nebbia v. People of State of New

York, 291 U.S. 502, 525, 54. S.Ct. 505, 511, 78 L.Ed. 940

(1934), quoted and followed in United States v. Toledo, Peoria

& Western Railroad Co., 280 F.Supp. 243 (N.D.Ind. 1968).

———

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CONCLUSION

For the reasons and cases reflected above, a Writ of Cer-

tiorari should issue to review the judgment and opinion of the

Supreme Court of the State of Nevada.

Viet

CARL E. LOVELL, JR.

City Attorney

CITY OF LAS VEGAS, NEVA-

DA, a Municipal Corporation

400 East Stewart Avenue

Las Vegas, Nevada 89101

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APPENDIX

268.020 Demands, claims must be presented within 6

months.

1. All demands and accounts and all claims of whatso-

ever kind, character or nature, or however the same may have

originated against any incorporated city in this state, must be

presented to the city council of the city, in writing, within 6

months from time such demands or accounts became due or

payable, and within 6 months from the time the acts from

which the claims originated shall happen. Claims for property

damage, personal injuries and any other claim arising out of a

tort shall be certified by the claimant before presentation. No

other claim or account need be certified. The certification

required by this subsection shall be in substantially the following

form: “I hereby certify that the above and foregoing claim

against the City of ...............sssseseeee , State of Nevada, is just and

reasonable, and that the claim is now due, owing and unpaid.”

2. Nosuch demand, account or claim against any incor-

porated city in this state shall be audited, considered, allowed

or paid by the city council or any officer or officers of the in-

corporated city unless the provision of subsection | shall have

been strictly complied with.

3. Nosuch demand, account or claim which has once

been rejected shall ever again be considered or allowed by the

same or any subsequently elected or appointed city council of

the same city.

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EEE TITERS

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